ENROLMENT AND DRAFT. 



367 



It is, therefore, only upon the power to raise armies 

 that this act can be founded, and, as this power is un- 

 disputed, the question is made to turn on the ancillary 

 power to pass " all laws which shall be necessary and 

 proper" for that purpose. (Art. 1, 8, 18.) It is, there- 

 Fore, a question of the mode of exercising the power 

 of raising armies. Is it admissible to call forced re- 

 cruiting a " necessary and proper " mode of exercising 

 this power? 



The fact of rebellion would not seem to make it so, 

 because the inadequacy or insufficiency of the perma- 

 nent and active forces of the Government for such a case 

 is expressly provided for by the power to call forth the 

 usually dormant force, the militia ; and that, therefore, 

 is the only remedy allowed, at least until it has been 

 fully tried and failed, according to the maxims, expresnio 

 unius est exclusio alterius, and expressum facit cessare 

 taciturn. No other mode can be necessary and proper 

 so long as a provided mode remains untried ; and the 

 force of these maxims is increased by the express pro- 

 vision of the Constitution, that powers not granted are 

 reserved, and none shall be implied from the enumera- 

 tion of those which are reserved. (Amendments, 9, 10.) 

 A granted remedy for a given case would therefore 

 seem to exclude all ungranted ones. Or, to say the 

 least, the militia not having been called forth, it does 

 not and can not appear that another mode is necessary 

 for suppressing the rebellion. 



And it seems very obvious that a departure from 

 the constitutional mode cannot be considered neces- 

 sary because of any defect in the organization of the 

 militia, for Congress has always had authority to cor- 

 rect this, and it cannot possibly found new powers in 

 its own neglect of duty. Though therefore this act 

 was passed to provide means for suppressing the 

 rebellion, yet the authority to pass it does not depend 

 on the fact of rebellion. That fact authorizes forced 

 levies of the militia under their own State officers, but 

 not for the regular army. 



But it is not important that Congress may have 

 assigned an insufficient reason for the law. If it may 

 pass such a law for any reason, we must sustain it for 

 that reason. The question then is may Congress, in- 

 dependent of the fact of rebellion or invasion, make 

 forced levies in order to recruit the regular army? 



If it may, it may do so even when no war exists or 

 threatens, and make this the regular mode of recruit- 

 ing. It may disregard all considerations of age, oc- 

 cupation, profession, and official station ; it may take 

 our governors, legislators, heads of State departments, 

 judges, sheriffs, aud all inferior officers, and all our 

 clergy and public teachers, and leave the State en- 

 tirely disorganized ; it may admit no binding rule of 

 equality or proportion for the protection of individuals, 

 States, and sections. In all other matters of allowed 

 forced contribution to the Union, duties, imposts, ex- 

 cises, and direct taxes, and organizing and training of 

 the militia, the rule of uniformity, equality, or propor- 

 tion, is fixed in the Constitution. It could not' be so 

 in calling out the militia, because the emergency of 

 rebellion or invasion does not always allow of this. 



But for the recruiting of the army no such reason 

 exists, and yet, contrary to the rule of other cases, if 

 it may be recruited by force, we find no regulation or 

 limitation of the exercise of the power, so as to pre- 

 vent it from being arbitrary and partial, and hence we 

 infer that such a mode of raising armies was not 

 thought of and was not granted. If any such mode 

 had been in the intention of the fathers of the Consti- 

 tution, they would certainly have subjected it to some 

 rule of equality or proportion, and to some restriction 

 in favor of State rights, as they have done in other 

 cases of compulsory contributions to Federal necessi- 

 ties. We are forbidden by the Constitution from in- 

 ferring the grant of this power from its not being 

 enumerated as reserved ; and the rule that what is not 

 granted is reserved operates in the same way, and is 

 equivalent to the largest bill of rights. 



Besides this, the Constitution does authorize forced 

 levies of the militia force of the States in its original 

 form, in cases of rebellion and invasion, and on the 



principle that a remedy expressly provided for a given 

 case excludes all implied ones, it is fair to infer that it 

 does not authorize forced levies in any other case or 

 mode. The mode of increasing the. military force for 

 the suppression of rebellion being given in the Consti- 

 tution, every other mode would seem to be excluded. 

 But even if it be admitted that the regular army may 

 be recruited by forced levies, it does not seem to me 

 that the constitutionality of this act is decided. The 

 question would then take the narrower form. Is this 

 mode of coercion constitutional ? 



It seems to me that it is so essentially incompatible 

 with the provisions of the Constitution relative to 

 the militia that it cannot be. On this subject, as on all 

 others, all powers not delegated are reserved. 



Now, the militia was a State institution before the 

 adoption of the Federal Constitution, and it must con- 

 tinue so, except so far as that Constitution changes it, 

 that is, by subjecting it, under State officers, to organ- 

 ization and training, according to one uniform Federal 

 law, and to be called forth to suppress insurrection 

 and repel invasion, when the aid of the Federal Gov- 

 enment is needed, and it needs this force. For this 

 purpose it is a Federal force ; for all others it is a State 

 force, and it is called in the Constitution " the militia 

 of the several States." (2, 2, 1.) It is, therefore, the 

 standing force of the States, as well as, in certain 

 specified respects, the standing force of the Union. 

 And the right of the States to have it is not only not 

 granted away, but it is expressly reserved, and its 

 whole history shows its purpose to be to secure do- 

 mestic tranquillity, suppress insurrections, and repel 

 invasions. Neither the States nor the Union have any 

 other militia than this. 



Now, it seems to me plain that the Federal Govern- 

 ment has no express, and can have no implied, power 

 to institute any national force that is inconsistent with 

 this. This force shall continue, says the Constitution, 

 and the Federal Government shall make" laws to or- 

 ganize and train it as it thinks best, and shall have the 

 use of it when needed ; this seems reasonable and 

 sufficient. Is the force provided for by this act incon- 

 sistent with it ? It seems to me it is. By it all men 

 between the ages of twenty and forty-five are " de- 

 clared to constitute the national forces," and made 

 liable to military duty, and this is so nearly the class 

 which is usually understood to constitute the military 

 force of the States that we may say that this act cov- 

 ers the whole ground of the militia and exhausts it en- 

 tirely. It is in fact, in all its features, a militia for 

 national instead of State purposes, though claiming jus- 

 tification only under the power to raise armies, and 

 accidentally under the fact of the rebellion. If this act 

 is law it is supreme law, and the States can have no 

 militia out of the class usually called to militia duty ; 

 for the whole class is appropriated as a national force 

 under this law ; and no State can make any law that 

 is inconsistent with it. The State militia is wiped out 

 if this act is valid, except so far as it may be permit- 

 ted by the Federal Government. And it seems to me 

 that this act is unconstitutional, because it plainly vio- 

 lates the State systems in this, tiat it incorporates into 

 this new national force every State civil officer, except 

 the Governor, and this exception might have been omit- 

 ted, and every officer of all our social institutions, cler- 

 gymen, professors, teachers, and superintendents of 

 hospitals, etc., and degrades all our State generals, 

 colonels, majors, etc., into common soldiers, and thus 

 subjects all the social, civil, and military organizations 

 of the States to the Federal power to raise armies, po- 

 tentially wipes them out altogether, and leaves the 

 States as defenceless as an ancient city with its walls 

 broken down. Nothing is left that has any constitu- 

 tional right to stand before the will of the Federal Gov- 

 ernment. 



This act seems to me to be further unconstitutional 

 in that it provides for a thorough confusion between 

 the army and the militia, by allowing that the regular 

 soldiers obtained by draft may be assigned by the 

 President to any corps, regiment, or branch of service 

 he pleases ; whereas, the Constitution keeps the two 



